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Although imperfect, Stanford’s new Title IX process successfully balances the competing considerations of seeking justice for victims, and maintaining due process. The university should be commended for its efforts.
Ten years ago, survivors of sexual assault at universities faced almost insurmountable barriers to justice, forcing them to anguish as assailants walked around campus unpunished. The police and courts ignored and marginalized victims’ cases, leading to shockingly low reporting, arrest and conviction rates. After a national outcry, the Obama administration revised federal Title IX regulations in 2011 via a “Dear Colleague” letter that transformed schools’ sexual assault adjudication processes. The standard of proof was lowered; due process protections were relaxed.
Although well-intentioned, these changes spawned a new set of problems. Schools often deny both parties a lawyer able to advocate on their behalf; the right to see or dispute all evidence used against them; and the right to cross-examination. Even after evidence is presented, defendants lost the fundamental right to remain innocent until proven guilty beyond a “clear and convincing doubt”. This intermediate standard was explicitly designed to chart a course between the stringency of the criminal justice system’s “beyond reasonable doubt”, and the civil system’s “preponderance of the evidence” standards. The 2011 Title IX changes abandoned any such moderation.
Each of these two paradigms swung the pendulum too far in favor of defendants’ and accusers’ rights respectively. Like most institutions, the Title IX office must balance a set of often competing considerations. In this case, Stanford must balance the need to allow survivors to speak out and seek justice, with the need for due process. After an acrimonious national debate and years of mistakes, Stanford’s new pilot process for Title IX investigations, in effect from February 1, successfully balances the rights of both sides in sexual assault cases. The university should be applauded for this momentous achievement.
The first positive reformguarantees access to lawyers. Legal representation is a necessary component of equality before the law: one’s right to defend oneself through words is only meaningful with the help of someone who understands legal procedures. The need to mount a cogent argument in a Title IX proceeding is pressing, regardless of knowledge or financial means. Stanford’s new process recognizes this important principle, and empowers both parties with nine hours of complimentary legal service.
But the reform is not perfect. Title IX proceedings still bar lawyers from speaking during hearings, forcing people to make important decisions without competent legal representation during one of the most important parts of the process. It also remains to be seen whether the “local attorneys” Stanford retains will be sufficient in number and difference that every student can find a lawyer who understands their case and is willing to defend them.
A second improvement clarifies evidentiary standards: that is to say, how Stanford decides what evidence is allowed to influence a verdict. Under the old sexual assault review process, unlike in a court of law, a single person decided both whether a student is guilty and which evidence is admissible to that decision. This increases the likelihood of bias or conflicts of interest. Additionally, those subject to a Title IX complaint have in the past been barred from reviewing incriminating evidence.
While there are legitimate confidentiality reasons that mean Stanford may not always be able to disclose unredacted evidence, the old policy gave university officials overly broad power to censor at will, and limited the ability of those under investigation to defend and explain themselves. The reformed guidelines, however, introduced a formalized procedure for evidentiary complaints, where either party can object to evidentiary decisions, and appeal to an independent specialist. This change is principally necessary, discourages heavy-handed evidence-culling by Title IX panellists, and increases mutual trust in the fairness of the review process. It is true that both sides’ evidentiary complaints are limited to a 1,500-word statement, but at least some progress in this department is welcome and long overdue.
Finally, the 70,000-word Title IX process document clarifies a necessarily intricate complaint process. Stanford spells out in detail precisely how long both parties have to make deadlines, the order of proceedings, the evidence and appeal process, the roles of each member on the panel, and other vital details gives.
Both parties in a Title IX hearing deserve a process that clearly enumerates steps and expectations, and consistently adheres to these parameters. Students cannot navigate this system if Stanford cannot meet these conditions. Arbitrary processes also harm victims by delegitimizing findings of guilt. Formalizing the process, rather than allowing unaccountable university staff to take whatever action they deem appropriate, will help detoxify the public image that Title IX has (legitimately) taken on in the light of heavy-handed action taken against Stanford’s Band, Greek life and alum Joe Lonsdale.
Title IX is an imperfect solution to ending one of the worst crimes imaginable. In an ideal world, universities would not be taking on any legal role whatsoever, but the structural inadequacies of law enforcement and the need to protect victims make this option untenable. Given a legal and moral framework that necessitates university-led hearings, Stanford has struck a balance that few other colleges have managed to achieve. This is despite the fact Title IX itself has substantial structural flaws: there are limited due process protections built in, and students are deemed innocent or guilty by a preponderance of the evidence, or a ‘more-likely-than-not’ standard. However, having criticized the role of Title IX in the past, we must also commend the University’s substantial improvements.
